Long push for Camp Lejeune toxic water lawsuits now hinges on Senate
CQ-Roll Call August 2, 2022
(Tribune News Service) — “I thought it was kind of a natural thing, because I never did anything much when I was pregnant to have lost a baby,” Daniels, 83, said in a phone interview from her home in Galivants Ferry, South Carolina.
Daniels now believes that the deaths of her only children were not just acts of God. Instead, they may have a government cause — the toxic chemicals that for decades contaminated the Camp Lejeune military base’s water supply that she drank during her pregnancies.
Congress this week is on the verge of passing legislation that would allow Daniels to file a federal lawsuit to seek compensation from the federal government for the effects of that exposure, along with as many as a million people who the Navy and Marine Corps say may have been exposed to the tainted water there from 1953 to 1987.
While she was pregnant, Daniels drank Camp Lejeune water that was contaminated with benzene from fuel, cleaning solvents known as TCE and PCE, lead and acid from batteries, and who-knows-what from munitions and other military waste dumped on the sandy soils of the coastal Marine Corps base over several decades.
“It could have been the water,” Daniels said, as she cried, in an interview with CQ Roll Call. “It could well have been.”
But still, four decades after the contamination was confirmed to be a serious threat to health, those who suffered illnesses or lost loved ones as a result of it are blocked from seeking damages from the government.
This summer, Congress folded the Camp Lejeune Justice Act into a broader bill that aims to give health coverage to millions who were sickened by smoke from “burn pits” during the wars in Afghanistan and Iraq. The House passed that bill last month. And President Joe Biden in June said he would sign a version of the bill right away, noting, “it will offer critical support to survivors who were harmed by exposures, including from water contamination at Camp Lejeune.”
Senate Republicans blocked the latest version of the bill last week. Majority Leader Charles E. Schumer said he would set up another vote to try again. Veterans have been in full outrage mode, led by comedian Jon Stewart, who has pushed for years to provide health care benefits for an estimated 3.5 million veterans exposed to toxic burn pits.
But there have been no celebrities lobbying for Daniels and other potential victims of Camp Lejeune’s toxic water. Theirs has been a much longer battle that has included opposition from the Department of Defense and a Supreme Court ruling that prevented them from suing the government.
“This is the culmination of 25 years of work,” said Jerry Ensminger, a former Marine drill instructor who lost a daughter to leukemia in 1985, nine years after she was conceived at Camp Lejeune.
It wasn’t until 1997 that Ensminger learned about the contamination at the base, and ever since he has led a relentless campaign seeking justice for victims of the toxic water.
Decades of dereliction
Marine Corps Base Camp Lejeune was established in 1942 to help train Marines for the beach landings that would be instrumental in winning World War II.
Unfortunately, the Navy engineers who designed the base drew its water from a shallow aquifer that was soon polluted by the military activities above.
Navy officials say the largely odorless and tasteless contaminants weren’t detected until 1985, when the poisoned wells were shut down. Four years later, the base was designated a hazardous waste site under the federal Superfund law, which triggered an investigation by a branch of the Centers for Disease Control and Prevention to determine if there were threats to human health.
There were many, and in the 1990s the government began searching for those who may have been affected. That’s how Ensminger connected his daughter Janey’s death to the contaminated water, after watching a CBS News report about the CDC study in 1997.
The subsequent quest by Ensminger and others to hold the military accountable for the harm caused at Camp Lejeune constantly ran into obstacles. “The United States Department of Defense doesn’t want their dirty laundry aired in public,” Ensminger said in a June interview about the long push. “I think the biggest part of it was the strength of the DOD.”
A Department of Defense spokesman declined to comment, citing “ongoing litigation.”
From the beginning, top brass in the Navy and the Pentagon obfuscated and stonewalled and denied responsibility for the contamination, Ensminger said.
When hazardous compounds started showing up in the water system, base officials said they had done nothing wrong because the substances were not yet regulated by state or federal agencies. When federal scientists recommended studies to determine the extent of the exposure, the Navy and Marine Corps argued that the research was unwarranted and unlikely to produce reliable results.
When the CDC went ahead with investigations anyway, the Pentagon withheld funding and data, even arguing that providing information about who had lived at Camp Lejeune when the water was contaminated would violate privacy laws.
And when the studies showed a cascade of harmful effects from the pollution, the military tried to discredit the findings, insisting that clear links between the contaminants and diseases like cancer were impossible to prove.
Ed Bell, a South Carolina attorney who has been leading the effort to allow Lejeune victims to seek compensation, said he understands the military did not know what the toxic water could do to people when the exposures began in the 1950s and ’60s. “But when they knew what those effects were, and decided to cover it up and lie to people about it and hide it — I’m not sure there’s anything more atrocious than that,” Bell said.
Victims of Camp Lejeune took their case to Congress and won a partial victory in 2012 with passage of the Janey Ensminger Act, which granted VA benefits to veterans and family members who had lived at the base for at least 30 days between 1953 and 1987 and later contracted any of a number of specific illnesses.
But health care coverage didn’t compensate Ensminger for the loss of his daughter, and he filed suit in federal court seeking damages. The case led to the greatest insult of all from the federal government, in his view.
While Ensminger’s lawsuit and others were being consolidated in the U.S. District Court for the Eastern District of North Carolina in 2014, the Obama administration sided with a different North Carolina polluter in a separate case that went all the way to the Supreme Court.
In that case, an electronics company had been sued by nearby property owners for pollution that turned up in their wells in 2009, which was 24 years after the company’s plant had shut down. The arguments came down to whether a state law or a federal law took precedence.
Attorneys for the defunct plant argued that under a North Carolina “statute of repose” law, a company could not face damage claims more than 10 years after its last act of pollution. The property owners countered that under the federal Superfund law, the time period for lawsuits against polluters begins when the contamination is discovered.
The Supreme Court sided with an argument supported by the U.S. solicitor general and found that the state law took precedence over the federal law.
As a result, the military, because of North Carolina’s statute of repose, was suddenly immune from any damage claims by victims of the Camp Lejeune pollution.
The veterans benefits bill currently making its way through Congress would remove that barrier and give anyone affected by the contamination two years to seek compensation in federal court in North Carolina.
Ensminger was being interviewed about the bill this summer by a TV reporter who met him at the Jacksonville city cemetery near Camp Lejeune, which includes a section that has come to be known as “baby heaven” because there are so many gravestones for infants.
The two came across a row of three graves, all inscribed with “DAU. OF MORRIS & NANCY DANIELS” but each showing a different name and date: “SUZY ... BORN & DIED MAR. 1, 1963,” “LUCY ... BORN & DIED FEB. 16, 1966,” and “JUDY ... BORN & DIED FEB. 17, 1970.”
Ensminger did some internet sleuthing and tracked down Daniels in South Carolina. He asked her about the babies, and after hearing the stories about their deaths, asked if she knew the water had been contaminated at each of the housing areas where she and her husband had lived at Camp Lejeune during the pregnancies.
Daniels had not heard about the base’s water problems, and when told by Ensminger over the phone, she broke down, he said.
Daniels cried again when contacted by CQ Roll Call a few days later. “It kind of hurts to talk about it,” she said.
Daniels and her husband, Morris, a 21-year Marine veteran who did two tours in Vietnam as a communications officer, had always wanted children of their own.
“I was pregnant three different times,” Daniels said. “The first time, I went into spontaneous labor. I went to the doctor for a checkup and they put me in the hospital because I had dilated. And then I lost the baby. It lived about two hours.
“Then the second time, the same thing happened,” Daniels said. “The third time, I was in the hospital about three weeks. I lost that baby too.”
Doctors had no real explanation, other than to blame the deaths on the shape of her uterus, Daniels said. They did some surgery on her after the second baby died, but it didn’t help, she said.
Daniels now believes Morris, who died at age 68 in 2004, was also a victim of the water at Camp Lejeune.
“He was in Vietnam with Agent Orange, then came home with the water,” she said. “He was a sick man before he died.”
A perfect storm
Daniels hasn’t had time to consider whether to seek compensation for the deaths of her babies, but one victim who does plan to sue the government is Mike Partain, a Florida man who was born at Camp Lejeune in 1968, just before his Marine father was shipped off to Vietnam.
Partain has a photo of his mother holding him as a baby in the base housing, with a glass of water next to them on the bedside table.
Not long after Partain turned 39 in 2007, his wife felt a lump on his chest and insisted that he have it checked out. He was diagnosed with breast cancer, an extremely rare disease in men that required a mastectomy and chemotherapy before going into remission. The treatments and related health problems cost Partain his first marriage and lots of money and grief, but he has since remarried and gotten back to work as an insurance adjuster.
It was not long after his surgery that Partain discovered the likely cause of his illness, when his father told him about a congressional hearing on the Camp Lejeune contamination that was covered on CNN.
The report noted the CDC was investigating health problems in children born at the base between 1968 and 1985.
Partain began doing some investigating of his own, and through internet searches tracked down more than 100 men who had spent time at Camp Lejeune and were later diagnosed with breast cancer. After years of working with Ensminger and lobbying on his own on behalf of fellow victims of the Lejeune water, Partain feels close to seeing some justice, in part because of Department of Defense behavior about Agent Orange, radiation and burn pits.
“I think the political momentum that Jon Stewart started is finally paying off,” Partain said of the legislation now on the Senate floor. “It’s like a perfect storm. There’s a host of veterans issues that have come together.”
“If the military keeps up this conduct,” Partain said, “what’s going to end up happening is people are not going to want to serve in our military, because they won’t trust it. It will destroy the trust between the U.S. citizens and our military, and if that happens we’re in serious trouble.”
(Magner, an editor at CQ-Roll Call, is the author of “A Trust Betrayed: The Untold Story of Camp Lejeune and the Poisoning of Generations of Marines and Their Families.”)
©2022 CQ-Roll Call, Inc., All Rights Reserved.
Distributed by Tribune Content Agency, LLC.